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THIRD SECTION

CASE OF VEDERNIKOVA v. RUSSIA

(Application no. 25580/02)

JUDGMENT

STRASBOURG

12 July 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Vedernikova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr A. Kovler,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having deliberated in private on 21 June 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 25580/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mrs Nina Arsentyevna Vedernikova (“the applicant”), on 26 June 2001.

The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

On 19 October 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1940 and lives in Novosibirsk. She receives an old-age pension.

On 1 February 1998 the Law on Calculation and Adjustment of State Pensions (hereafter “the Pensions Act”) introduced a new method of calculation of retirement benefits based on what is known as the “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual's wages at the time of retirement and the national average wage. The IPC was meant to maintain a link between pensions and previous earnings.

The applicant considered that the Zayeltsovskiy District Division of the Pension Fund (hereafter “the Fund”) had incorrectly calculated her pension and in March 1999 she sued the Fund for an increase of her pension in accordance with the Pensions Act.

On 22 November 1999 the Zayeltsovskiy District Court of Novosibirsk found in the applicant's favour. The District Court held that the Fund had misconstrued the law and that the applicant's pensions should be recalculated and increased in line with an IPC of 0.7 starting from 1 February 1998. The District Court also awarded the applicant 3,004.08 Russian roubles (RUR) in pension arrears. On 25 January 2000 the Novosibirsk Regional Court upheld the judgment.

On 21 August 2000 the Fund requested the Zayeltsovskiy District Court to reopen the case owing to a newly-discovered circumstance. The Fund claimed that on 29 December 1999 the Ministry of Labour and Social Development had issued an Instruction on the Application of Limitations established by the Pensions Act. The Instruction clarified how the Pensions Act should be applied. The Fund further indicated that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. The Fund contended that since it had been unaware of the Supreme Court's decision of 24 April 2000 at the time of the judgment of 22 November 1999, the judgment would have to be reconsidered.

On 31 January 2001 the Zayeltsovskiy District Court granted the Fund's request, quashed the judgment of 22 November 1999 and reopened the proceedings. The District Court applied Article 333 of the RSFSR Code of Civil Procedure according to which judgments could be reconsidered in the event of discovery of significant circumstances which were not, and could not have been, known to the party concerned. The District Court found that the Instruction could serve as such a circumstance. The decision of 31 January 2001 was final and not amenable to appeal.

On 12 February 2001 the Zayeltsovskiy District Court, after the fresh examination of the case, dismissed the applicant's action in full. On 5 April 2001 the Novosibirsk Regional Court upheld the judgment.

II. RELEVANT DOMESTIC LAW

Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority's decision which had served as a legal basis for the judgment in question.

Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances.

Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal.

On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (CCrP). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the Code of Civil Procedure) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

The applicant complained that the decision of the Zayeltsovskiy District Court of 31 January 2001 to quash the judgment of 22 November 1999 and reconsider the case had violated her “right to a court” and deprived her of the fruits of the litigation. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Pravednaya v. Russia, no. 69529/01, §§ 19-42, 18 November 2004). The relevant parts of these provisions provide as follows:

Article 6 § 1

“In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing ... by [a]... tribunal established by law...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”

A. The parties' submissions

The Government submitted that the judgment of 22 November 1999 had not determined any definite amount, but had rather established how the pension should be calculated. In this connection they recalled the Court's findings in the case of Kiryanov v. Russia ((dec.), no. 42212/02, 9 December 2004) and maintained that the dispute in the present case concerned legislation on pensions which fell outside the area of “civil rights and obligations”. In support of this assertion the Government also referred to Schouten and Meldrum v. the Netherlands (judgment of 9 December 1994, Series A no. 304) and Pančenko v. Latvia, ((dec.), no. 40772/98, 28 October 1999), alleging that “the determination of the order of calculation of pensions belongs to the realm of public law”.

The Government further contested that the pensions awarded to the applicant by virtue of the judgment of 22 November 1999 constituted her “possession” within the meaning of Article 1 of Protocol No. 1. They noted that in the case of Pravednaya v. Russia (no. 69529/01, 18 November 2004) the Court had regarded a judicial award of that type as the applicant's “possession”. However, in the Government's view, such an approach created confusion. If the sum awarded by a court was a pensioner's “possession”, it should not be affected by any subsequent increase in pension rates. Therefore, in Pravednaya the applicant would have had to return the money she had already received from the Pension Fund by virtue of the more recent changes in the legislation on State pensions. They concluded that in order to avoid such situations the Court should not regard the pension amount awarded by the domestic courts as the claimant's “possessions” within the meaning of Article 1 of Protocol No. 1.

The Government also claimed that the District Court had not reopened the case capriciously, but because of the decision of the Supreme Court which had confirmed the lawfulness of the Instruction. The case was reopened with a view to correcting a judicial error. In their request for reopening, the Fund referred to the decision of the Supreme Court of 24 April 2000. This was a major difference in relation to the Pravednaya case where the request for reopening had been made without reference to that decision of the Supreme Court.

The Government invited the Court to conclude that the complaint was incompatible with the Convention ratione materiae, or, alternatively, that there had been no breach of Article 6 § 1 or Article 1 of Protocol No. 1 on account of the reopening of the case concerning the applicant's pension.

The applicant maintained her complaints.

B. The Court's assessment

1. Admissibility

As regards the Government's objection that the applicant's complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 is incompatible ratione materiae, the Court notes that the Russian Government have raised an identical objection in many cases concerning the reopening of proceedings in pension disputes owing to so-called “newly discovered circumstances”. The Court has examined that objection in detail and dismissed it.

In particular, in the case of Bulgakova v. Russia (no. 69524/01, 18 January 2007) the Court held that Article 6 § 1 of the Convention was applicable to proceedings concerning the calculation of the applicant's pension on the basis of the IPC because “even if the indication of the precise amount was missing from the judgment, the proceedings at issue established a particular pecuniary obligation of the State vis-à-vis the applicant” and because “beyond doubt the pension and the related benefits, which are purely economic in nature, are 'civil' rights within the meaning of Article 6 § 1” (see Bulgakova, cited above, §§ 28-30).

Furthermore, the Court also found that a “legitimate” expectation to receive a pension by virtue of a final court judgment, as in the present case, attracted the protection of Article 1 of Protocol No. 1, and that the annulment of a sufficiently clear and specific judgment constituted an interference with the applicant's peaceful enjoyment of “possessions” within the meaning of Article 1 of Protocol No. 1 (ibid. § 31).

The Court sees no reason to depart from those findings in the present case and dismisses the Government's objection that the applicant's complaint is incompatible ratione materiae with the Convention provisions.

The Court further notes that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Article 6 § 1 of the Convention

(i) General principles

The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 VII). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case.

In fact, the Convention in principle tolerates the reopening of final judgments if new circumstances are discovered. For example, Article 4 of Protocol No. 7 expressly permits the State to correct miscarriages of criminal justice. A verdict ignoring key evidence may well constitute such a miscarriage. However, the power of review should be exercised to correct judicial errors and miscarriages of justice, and not treated just as an “appeal in disguise” (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 IX).

The Court recalls its findings in the Pravednaya case, cited above, where it held (§§ 28 et seq.) as follows:

“The procedure for quashing of a final judgment presupposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive. Such a procedure is defined in Article 333 of the CCivP and is common to the legal systems of many member States.”

However, this procedure may be misused, as in the Pravednaya case. In that case the relevant pension agency, referring to the same Instruction as in the present case, had obtained the reopening of the proceedings and the quashing of the initial judgment with retroactive effect. The Court concluded that this had constituted a breach of Article 6 § 1 and Article 1 of Protocol No. 1.

(ii) Application to the present case

The Government argued that the present case should be distinguished from the case of Pravednaya (cited above) because in the instant case the District Court's decision to reopen the proceedings had been based on the “newly discovered circumstance” constituted by the Supreme Court's judgment of 24 April 2000, whilst in the Pravednaya case it had been the Instruction which served as the ground for the reopening. The Court agrees that the main difference between the two cases lies in the legal instruments on which the domestic courts relied to justify the quashing of the final judgments and the reopening of the proceedings. However, the Court is not convinced that this difference warrants a departure from the conclusion reached in the case of Pravednaya.

The Court observes that on 22 November 1999 the applicant obtained a judgment by which the Fund, a State body, was to recalculate and increase her pension in compliance with the requirements of the new Pensions Act. The District Court's interpretation and application of the new Pensions Act led to the judgment in favour of the applicant. On 24 April 2000, after the judgment of 22 November 1999 had been upheld on appeal and had become final and enforceable, the Supreme Court adopted a judgment confirming the lawfulness of the Instruction which supported the Fund's reading of the Pensions Act. In August 2000 the Fund applied for a reopening of the proceedings, referring to the Supreme Court's judgment. On 31 January 2001 the District Court accepted the request, reopened the proceedings and subsequently dismissed the applicant's claims.

In this connection, the Court has to ascertain whether the Supreme Court's judgment of 24 April 2000 may count as a “newly discovered circumstance”, as it was found to be by the District Court, and whether the quashing of the final judgment of 22 November 1999, as upheld on 25 January 2000, was justified in the circumstances of the case.

The Court reiterates that circumstances which concern a case and which already existed during the trial, but remained hidden from the judge and became known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new” (cf. Bulgakova, cited above, § 39). Having regard to the fact that the Supreme Court's judgment of 24 April 2000 was adopted after the judgment of 22 November 1999 had been upheld on appeal and had become final on 25 January 2000, the Court cannot accept that the Supreme Court's judgment of 24 April 2000 could be construed as a “newly discovered circumstance” (ibid. § 39).

The Court further observes that the Supreme Court's ruling merely confirmed the lawfulness of the Instruction which had existed when the applicant's case had been examined for the first time and which could have been brought to the domestic courts' attention by the Fund. This conclusion is supported by the Government's argument that the Instruction was not a “newly discovered circumstance”. The Court thus considers that the Fund's request of 21 August 2000 to reopen the case owing to the discovery of new circumstances was in essence an attempt to re-argue the case on points which the Fund could have, but apparently failed, to raise when the case was heard for the first time. That being so, the Court considers the Fund's request to be an “appeal in disguise” rather than a conscientious effort to make good a miscarriage of justice (cf. Pravednaya, cited above, §§ 31-33).

Furthermore, the Court notes that the Supreme Court's ruling of 24 April 2000, upholding the lawfulness of the Instruction, supported the Fund's reading of the new Pensions Act. However, the same Pensions Act was at the heart of the examination carried out by District and Regional courts in 1999 and 2000. The interpretation of the Pensions Act given by the District and Regional courts led to the judgments of 22 November 1999 and 25 January 2000 in the applicant's favour. In this connection, the Court reiterates that the fact that a higher-instance court disagreed with the interpretation of the domestic law given by the courts below, cannot, in itself, serve as an exceptional circumstance warranting the quashing of a binding and enforceable judgment and reopening of the proceedings on the applicant's claim (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007).

The Court therefore concludes that by granting the Fund's request to set aside the final judgment of 22 November 1999, as upheld on appeal on 25 January 2000, the national authorities infringed the principle of legal certainty and the applicant's “right to a court” under Article 6 § 1 of the Convention.

There has accordingly been a violation of that Article.

(b) Article 1 of Protocol No. 1

The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the judgment beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).

The Court observes that the final and enforceable judgment of 22 November 1999, as upheld on 25 January 2000, by which the applicant had been awarded an increased pension in accordance with the provisions of the new Pensions Act, was quashed on 31 January 2001. The District Court re-examined the matter and dismissed the applicant's claims. Thus, the applicant, through no fault of her own, was prevented from receiving the initial judgment award.

To justify that interference the Government claimed that it had been lawful and pursued a legitimate aim, namely to correct a judicial error. The Court accepts that this measure pursued the public interest; however, its compliance with the “lawfulness” requirement of Article 1 of Protocol No. 1 is questionable. Whilst the case was reopened because the domestic court viewed the Supreme Court's judgment of 24 April 2000 as a “newly discovered circumstance”, such a reading of Article 333 of the RSFSR Code of Civil Procedure is more than liberal (see paragraph 30 above). Even assuming that the District Court's reading of the domestic law was not arbitrary, it still remains to be established whether the interference was proportionate to the legitimate aim pursued.

In this connection the Court has already examined a similar argument in the Pravednaya case, where it held that “the State's possible interest in ensuring a uniform application of the Pensions Law should not have brought about the retrospective recalculation of the judicial award already made” (Pravednaya, cited above, § 41). The backdating of the recalculation, with the effect that the sums due were reduced, frustrated the applicant's reliance on the binding judicial decision and deprived her of an opportunity to receive the money she had legitimately expected to receive (cf. Bulgakova, cited above, § 47). In these circumstances, the Court considers that the quashing of the enforceable judgment of 22 November 1999, as upheld on 25 January 2000, placed an excessive burden on the applicant and was incompatible with Article 1 of Protocol No. 1.

There has therefore been a violation of that Convention provision.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Lastly, the applicant complained that following the decision of 31 January 2001 the domestic courts had incorrectly interpreted and applied the domestic law and that the proceedings had been excessively long.

Having regard to all the material in its possession, the Court finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed RUR 33,399.34 in respect of pecuniary damage, representing the difference between the pension to which she was allegedly entitled in accordance with the judgment of 22 November 1999 and the pensions actually paid. She calculated that sum on the basis of the IPC of 0.888. She further claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

The Government, using the method of calculation for the applicant's pension based on the IPC of 0.7 as established in the judgment of 22 November 1999, argued that the applicant was to be paid RUR 3,309.02, representing the difference between the pension to which she had been entitled under that judgment and the pension actually paid to her. As regards the claims in respect of non-pecuniary damage, the Government submitted that they were excessive and unreasonable.

The Court observes that in the present case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the applicant had been unable to receive an increased pension as a result of the reopening of the proceedings and the quashing of the final judgment in her favour. The Court notes that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position she would have been in had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that this principle applies as well in the present case, having regard to the violations found (cf. Poznakhirina v. Russia, no. 25964/02, § 33, 24 February 2005). The applicant was prevented from receiving money she had legitimately expected to receive under the judgment of 22 November 1999. In this connection, the Court notes that the applicant's entitlement to receive pension payments based on the IPC of more than 0.7 was never confirmed by any domestic court. In accordance with the judgment of 22 November 1999, as upheld on 25 January 2000, the applicant was entitled to a pension calculated with an IPC of 0.7 until an increased IPC was introduced under the Russian pension legislation. The Court therefore accepts the Government's calculation of the pension to which the applicant was entitled in accordance with the judgment of 22 November 1999 and awards the applicant RUR 3,309 plus any tax that may be chargeable on that amount.

The Court further considers that the applicant suffered distress and frustration resulting from the quashing of the judgment of 22 November 1999, as upheld on 25 January 2000. Making its assessment on an equitable basis, the Court awards the applicant 2,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The applicant also claimed RUR 1,192.15 for the costs and expenses incurred before the Court.

The Government submitted that the applicant's claims were substantiated and reasonable.

According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 35 covering the costs of the proceedings before the Court, plus any tax that may be chargeable on that amount.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint concerning the quashing of the final judgment in the applicant's favour admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1;

Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted, where appropriate, into Russian roubles at the rate applicable at the date of the settlement:

(i) RUR 3,309 (three thousand three hundred and nine Russian roubles) in respect of pecuniary damage;

(ii) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;

(iii) EUR 35 (thirty-five euros) in respect of costs and expenses;

(iv) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Boštjan M. Zupančič
Registrar President